In re Anheuser-Busch Beer Labeling Marketing & Sales Practices Litigation, 644 F. App'x 515

Background

Consumers in seven states sued Anheuser‑Busch in consolidated MDL, alleging its malt‑beers listed higher alcohol‑by‑volume (ABV) than actually present and that the brewer intentionally diluted products to the lower end of measured tolerances to save costs and deceive buyers.
Plaintiffs sought state consumer‑protection and warranty remedies (and derivative MMWA claims) and proposed a nationwide class based on Missouri law for residents of the contiguous 48 states.
Federal regulation 27 C.F.R. § 7.71(c)(1) permits a 0.3% ABV tolerance above or below the stated percentage; each relevant state had incorporated that federal tolerance into state labeling law or required TTB‑approved labels.
Anheuser‑Busch moved to dismiss, arguing that deviations within the 0.3% tolerance (intentional or not) are permitted and thus preclude liability under state consumer‑protection or warranty law; the district court dismissed after plaintiffs conceded their claims would fail if § 7.71 covered the conduct.
On appeal plaintiffs argued § 7.71 should be read to exclude intentional targeting of the lower tolerance (relying on NIST Handbook 44 and policy goals) and alternatively argued state claims survive even if § 7.71 permits the conduct; Sixth Circuit analyzed text, context, and forfeiture.
The Sixth Circuit held § 7.71’s tolerance applies irrespective of intent, found plaintiffs forfeited the argument that state claims survive compliance with § 7.71, and affirmed dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meaning of § 7.71(c)(1) tolerance — does it exclude intentional variances?	“Tolerance” is a technical term; it should allow only unintentional deviations; intentional targeting of the lower end is not protected.	§ 7.71’s plain text permits a 0.3% tolerance without any intent exception; mandatory language creates a safe harbor for deviations within that tolerance.	§ 7.71’s plain language allows a 0.3% tolerance regardless of intent; no textual or structural basis for an intent exception.
Relevance of NIST Handbook 44 and related state adoptions	Handbook 44’s guidance (don’t take advantage of tolerances) shows tolerance is not a license for intentional manipulation.	NIST standards govern measuring devices, not labels; § 7.71 is a separate ATF/TTB rule and states specifically adopted § 7.71’s tolerance.	Handbook 44 is inapposite; the ATF used “tolerance” in its ordinary sense and included intent‑based exceptions elsewhere when intended.
Whether compliance with § 7.71 bars state consumer‑protection and warranty claims	Even if § 7.71 permits conduct, state law can still reach misleading labeling — compliance shouldn’t automatically create immunity.	Specific federal/state labeling rules incorporated into state law preclude applying broader state consumer‑protection/warranty rules that would conflict (lex specialis); many states have safe‑harbor doctrines.	Court did not decide on the merits: plaintiffs forfeited this argument by failing to present it clearly below; dismissal stands because § 7.71 was not violated.
Whether POM Wonderful (decided after district court) requires appellate consideration of forfeited argument	POM supports allowing a separate consumer claim despite regulatory compliance; thus appellate review is required in interests of justice.	POM addresses different statutes and does not change available preexisting authorities; plaintiffs could and should have raised state‑law harmonization arguments earlier.	POM does not justify excusing forfeiture; no extraordinary circumstances existed and sufficient pre‑POM authority was available.

Key Cases Cited

Morales v. Trans World Airlines, 504 U.S. 374 (1992) (specific statutory provision governs over more general one)
POM Wonderful LLC v. Coca‑Cola Co., 134 S. Ct. 2228 (2014) (regulatory compliance under one federal statute does not necessarily preclude claims under a different federal statute)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard at motion to dismiss)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a claim plausible on its face)
Russello v. United States, 464 U.S. 16 (1983) (different language in related provisions suggests different meanings)
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (mandatory statutory language ordinarily disfavored from judicial exception)
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531 (1987) (plain statutory language controls absent structural conflict)